1. Positive action vs positive discrimination
David Bass, Scotland Programme Manager, ECU
Kay Steven, Scotland Policy Officer, ECU
Dan Shaffer, Head of Professionalism in Admissions, SPA

2. Disclaimer
NOT LEGAL ADVICE

3. Protected characteristics
Do you actively support applicants based on:
pregnancy and maternity
disability
age
sexual orientation
gender reassignment
sex
race
marriage and civil partnership*
religion or belief
*Section 90 of the Equality Act excludes the protected characteristic of marriage and civil partnership from additional requirements expected of further and higher education.

4. The Equality Act Equality Act, 2010, section 91:
Unlawful for a HE provider to discriminate:
in the arrangements it makes for deciding who is offered admission as a student
as to the terms on which it offers to admit the person as a student
by not admitting the person as a student

5. Can you treat someone more favourably?
The Equality Act
Discrimination covers both:
Direct
(e.g. treating individuals less favourably because of their age)
Indirect
(e.g. a policy which applies equally to all, but which results in disadvantaging those with a disability)
Can you treat someone more favourably?

6. The Equality Act – Public Sector Equality Duty
Public bodies must have due regard to:
Eliminate discrimination
Foster good relations
Advance equality of opportunity
by reducing disadvantage, meeting (unmet) needs, and encouraging participation where it is low
HE providers need to encourage those underrepresented to participate

7. The Equality Act – positive action
Section 158 of the Equality Act allows for, but does not require, positive action measures to be taken to help people sharing a protected characteristic if a HE provider reasonably considers, based on evidence, any of the below conditions exist:
they suffer a disadvantage connected to the characteristic
they have needs that are different from the needs of persons who do not share it
participation in an activity by those sharing that protected characteristic is disproportionately low.

8. The Equality Act – positive action
different needs
low participation
disadvantaged

9. The Equality Act – positive action
different needs
low participation
disadvantaged
Any action must be proportionate
This is not legally defined
Different lawyers (and therefore different judges) would have different opinions on what positive action initiatives were lawful and which weren’t – assessing legality is difficult – and pragmatically, depends on getting challenged.

10. Different forms of positive action
eradicating discrimination
purposefully inclusionary policies
Different forms of positive action
outreach programmes
e.g. removing an unjustified historic age limit on applying to a particular course
preferential treatment
e.g. blanket equality statement of ‘applications welcome from mature students’
redefining merit
e.g. an activity specifically targeting mature students
e.g. guaranteed interviews for mature applicants
e.g. having ‘over 21’ as an alternative entry requirement
(McCrudden, 1986)
This is a helpful typology – for institutions, it helps us think about how far under the law we can go with positive action
Eradicating discrimination: identifying and replacing discriminatory practices; - making things fairer, but still passive. An example of this might be removing an unjustified historic age limit on who can apply to a particular course.
Purposefully inclusionary policies: facially neutral policies that seek to increase the proportion of members of the disadvantaged group; - more proactive Using the same example, this might mean having a blanket equality statement stating ‘applications welcome from mature students’
Outreach programmes: programmes designed to attract qualified candidates from the previously underrepresented or disadvantaged group; - targeted activities and specific opportunities So a mature student specific activity
Preferential treatment: plans to reduce the underrepresentation or disadvantage by introducing what may be called ‘reverse discrimination’ in favour of members of the disadvantaged group; - this is often uncomfortable, and often requires more careful design and implementation to be lawful . Start getting tricky here, but just to get you thinking – this might mean that mature applicants get guaranteed interviews in a selection process, or even designing a foundation year aimed at mature students.
Redefining merit: an alteration to the qualifications necessary to do the job by including the protected characteristic as a relevant qualification in order to be able to do the job properly.
- this is when we give someone a role based on their protected characteristic - redefining merit isn’t permissible in the UK. This would be for example saying that “have an A level in Chemistry OR be over 21”

11. What action can we take prior to entry?
SPA’s briefing was designed to start discussions going.
But if you’ve identified disadvantage, specific needs, or underrepresentation,
it’s time to call in
the experts …

12. Positive action step 1: “reasonable” evidence of need.
Where a person reasonably thinks* that persons sharing Protected Characteristics:
suffer a disadvantage connected to it, or
Have needs that are different from the needs of persons not sharing it, or
Have a disproportionately low participation rate in the activity
*Evidence must be objective and rigorous – more than anecdotal or supposition.
All institutions have to be careful about ensuring equality of treatment for students – and staff – around those characteristics which are ‘protected’ under the Equality Act Quick quiz – can anyone name all the protected characteristics?
So positive action, is about an action giving preferential treatment around one of those charcteristics (or a combination) so for example, for ethnicity, black students, or for gender, women in STEM. The Equality Act does allow for preferential treatment in a very few circumstances anyway, but for positive action it specifically sets out – in s.158 if you’re interested - certain threshold conditions permitting positive action initiatives.
and applies when an employer ‘reasonably thinks that –
Persons who share a protected characteristic suffer a disadvantage connected to that characteristic,
Persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or
Participation in an activity by persons who share a protected characteristic is disproportionately low. (section 158(1)).’
[additional information if time or for reference in slides later]
This is an objective standard with a subjective element, since it is clear from the parliamentary debates on the Equality Bill (Hansard, 2010) that, where an employer identifies a need to tackle disadvantage or under-representation, their knowledge of their workforce profile or of comparable employers in the sector or of the picture nationally will be sufficient, without sophisticated statistical proof (EHRC, 2011 Code of Practice on Employment (paragraph 12.14)).
Assuming that this (relatively low) threshold is met, then an employer will be entitled to take action which has the aim of overcoming or minimising the disadvantage, meeting differing needs, or enabling or encouraging participation of under-represented groups (section 158(2)), so long as any initiatives are ‘proportionate’. When considering whether an initiative is ’proportionate’ account will need to be taken of the seriousness of the disadvantage, the extent of the needs or under-representation, as well as whether there might be other ways in which the intended aims might be achieved (Explanatory Notes, para 512).
S158 extended the scope of previous legislation
Doesn’t need to satisfy all three potential justifications and no requirement to have a comparator group
Meeting the low ‘reasonably think’ threshold allows colleges to undertake some form of ‘proportionate’ positive action, but further questions arise when we think about which specific positive action initiative we want to put in place

13. Group task 1
Discuss examples of potential underrepresentation, disadvantage or differing need based on a protected characteristic and pick one which relates most to your institutions.
What evidence could you use or gather to show that you ‘reasonably think’ this particular underrepresentation, disadvantage or differing need exists?
Likely time – 5 minutes
Now to help think about what this means practically to you we have a group task – maybe on your tables or in corners (depending on room set up).
We will put a reminder of the protected characteristics on your table don’t worry!
Divide this into two distinct questions –
Where do you think there is underrepresentation, disadvantage or differing need based on a protected characteristic in your institution?
This should be a quick discussion, 1 minute or so. Obvious answers should be around Gender Action Plans or BME underrepresentation on certain courses (teaching, philosophy, history). Disadvantages might relate to differences in opportunities around experience/placements for different courses – medicine, vet medicine/nursing, teaching, etc.
If you get all gender focused responses, ask the group to think more widely, perhaps don’t pick your own area. And think about different types of disadvantage.
2. What evidence could you gather to meet the ‘reasonably think’ test?
In a WP context we’re probably mostly talking about underrepresentation and this should be pretty obvious statistically in applications and enrolment data. However, there may be challenges where we don’t have great data (LGB participation, R&B, etc)
It isn’t just about numbers. Fairly subjective approach – use what evidence is available.
This is a low threshold – it will be higher when it comes to proportionality and thinking about developing a specific proportionate positive action initiative

14. Step 2: Designing an initiative proportionate to need/evidence
Proportionate means: legitimate, effective, necessary
The measure must aim at eliminating and correcting the causes of reduced opportunities.
Is the measure necessary to achieve the aim?
Does the measure account for individual context?
Think:
Are there alternative ways to achieve aim?
Adverse affect on other groups - mitigate?
Two tests when designing a positive action measure:
Reasonably think
Proportionality
How do I know where the line is between positive action and positive discrimination – proportionality
Always keep in mind your aims which are:
Enabling or encouraging persons to overcome or minimise disadvantage
Meeting the different needs of protected groups
Enabling or encouraging persons to participate in an activity
Proportionality across a set of key factors in relation to the severity, understanding and evidence of the disadvantage:
Strength of intervention/measure (link to McCrudden’s scale)
Unintended consequences/disadvantage to other groups
Link to cause of disadvantage (likelihood of success)
Don’t use a sledge hammer to crack a nut.
Think about ‘collateral damage’ – what would be unreasonable? Can it be mitigated?
How confidently have we identified the cause of the disadvantage and how well does the measure address it?
In practice – understanding the mechanisms causing a particular disadvantage and how your intervention would address it is important. (evidence base, experience from previous initiatives and qualitative RESEARCH).
Finally, courts have added one more crucial aspect to proportionality - savings clauses. Courts have struck down just about any positive action measure that applied universally and without account for individual circumstance or context.
This is important in an access environment as it means we can’t just apply blanket rules. We have to ensure discretion and individuality of decisions are built in to positive action measures for them to count as proportionate.
Some of you might already be thinking ahead and wondering what happens over time – for example, if the disadvantage or underrepresentation gets worse, or gets better - and how that affects your decisions on what is ‘proportionate’ to your aims– we’ll look at this in a bit.

15. Group Task 2
A university’s statistics show only 5% of its nursing students are men. The university has introduced single sex (male only) open days for nursing with male speakers and content, along with application/interview support for attendees who go on to apply for the course. Consider the following: What evidence would be needed to support the introduction of this measure?
Likely time – 10 minutes
Distribute positive action checklist
What evidence is needed?
The aim is to make a strong link between the initiative and the cause of the underrepresentation
If people seem to struggle with the concept, another way of framing the question is ‘under what circumstances would this measure be justified and proportionate?’
The underrepresentation itself is justification for some form of positive action.
An institution would expect to have the following evidence in place:
Application/enrolment data showing that it is a lack of applications, rather than a lack of successful applicants or barriers within the admissions process resulting in underrepresentation, and therefore that an outreach focused measure is proportionate
It may be useful to note that these aren’t the strongest positive action measures (outreach plus very mild preferential treatment) so the requirements around evidence are lighter than for a stronger measure. Similarly, the underrepresentation is quite severe.
Some form of additional evidence is required to justify the various components/measures (single sex open days, interviews/support, etc)
This could take various forms, for instance:
Survey data from local men that they would be interested in hearing about nursing from successful male nurses
National research showing men are more likely to engage with subjects where they are underrepresented in male only environments and with male focused content
Institutional data from this university or others showing that men perform more poorly in interviews and applications compared to women
From the checklist: Designing and balancing an initiative: ensuring “proportionality”
How will a particular measure address the need, underrepresentation or disadvantage? With the research above, the measure has a decent chance of being successful, though recognising that much of the underrepresentation could be due to societal factors, and the measures might have limited impact. Evaluation would be important to assess impact and justify future, stronger positive action measures
Might any other groups be disadvantaged by the introduction of the measure (conduct an equality impact analysis)? If so what plans are in place to alleviate negative impacts? Unlikely, if mixed open days were provided as usual for women to acccess
Is there another, more effective (or less adverse to other groups), way for the HEI/college to address that need, disadvantage or underrepresentation (i.e. proportionality)? Maybe? See what they come up with?
Does the measure rely on objective and transparent criteria? How will you ensure decisions in relation to the measure are taken on an individual basis (i.e. a savings clause)? Female access to open days and to eg interview support could be determined on an individual basis

16. Group Task 2
The university has introduced single sex (male only) open days for nursing with male speakers and content, along with application/interview support for attendees who go on to apply for the course. Consider the following: Women have now requested that open days and guaranteed interviews and support be offered to them as they feel that male students are receiving preferential treatment. How would you respond?
Likely timie – 5 minutes
If people don’t seem to quickly get the concept, ask what the point of the scheme is? It’s to provide preferential treatment for men to improve applications and enrolments of men in nursing. Equal treatment/measures for women would undermine this aim.
Core point is that preferential treatment (though not necessarily disadvantaging women directly) is the point of the scheme.
A more nuanced discussion would incorporate two further points
Discussion on sunset clauses and review. At what point has the scheme achieved it’s aim? What if it has worked very well and men are now more likely to be applying ? What would be the impact of withdrawing the measure?
Discretionary/savings clause – make sure capacity to account for individual circumstances is built in. If issues for a specific individual woman are same reason scheme was set up for men, then strong argument for thiswoman to be included. This woman is likely to be the person that takes a legal challenge if she’s denied, so pragmatic element here too.

17. Positive Action Step 3: Roll-out & evaluate
Think about:
Clear, objective and measurable criteria
Transparency and communication of scheme
Measuring impact (target group and other groups)
Sunset clause: reviewing need and proportionality – when does it end?
Limits from the Equality Act:
Racial segregation is always discriminatory
Not discrimination for a disabled person to be treated more favourably
As all of us will be aware, if you’re talking about fair admissions you need to be clear on your selection criteria. The same applies for these measure as it does to entry requirements – you need to make sure you have a very clear and objective way of identifying those eligible for your initiative. The consistency and rigour in application of the measure will be as important a consideration as the design of the scheme in regards to proportionality. On a practical level, when it comes to some protected characteristics you might need to think carefully about how you get the relevant data - for example, if you’re talking about an initiative during the selection process around ethnicity you usually wouldn’t have this information from your applicants until post-decision *J. Are you going to find a way to encourage self-disclosure around this particular scheme, what would that process look like, how would you define and explain some ethnic categories - to anyone let alone perhaps international students?
Related to this is transparency around the scheme and thinking about your communications. You need to think carefully about how you explain what your initiative is, why you’re doing it, and how it’s being carried out, perhaps paying particular attention to the savings clause. This isn’t just external to applicants, parents and schools – you need to make sure your institutional colleagues are signed up and on board. If you’re going to go about this properly I’d also advise making sure you have some robust complaints and appeals processes in place and update any fair admissions policies to reflect the scheme.
Measuring impact – evidence led policy and practice is very important. Need to ensure continual review to see if you are meeting your aims, and to think about any disadvantage to other groups. This can be about remaining flexible to changing needs too – think Brexit, fees, TEF, qualification reform - a lot is changing is a short space of time.
Sunset clause – this is important to think about when you’ve “done” or at least achieved some of what you sent out to do. This can also help to reassure doubtful colleagues – frame this as a ‘pilot’ and be clear on how you will review before any scalability.
Review/test of proportionality, including what would happen if positive action is withdrawn.

18. Unanswered questions?